COLLATERAL AGENT AGREEMENT
Exhibit
4.56
COLLATERAL
AGENT AGREEMENT (this “Agreement”) dated as
of May 8, 2008, among Collateral Agents, LLC, a Delaware Limited Liability
Company (the “Collateral Agent”),
and the parties identified on Schedule A hereto (each, individually, a “Lender” and
collectively, the “Lenders”), who hold
or will acquire promissory Notes issued or to be issued by China Cablecom
Holdings, Ltd. (“Parent”), a British Virgin Islands company, and China Cablecom
Ltd., a British Virgin Islands company (“Guarantor”), as set forth on Schedule A
hereto and at or about the date of this Agreement as described in the Security
Agreement referred to in Section 1(a) below (collectively herein the “Notes”).
WHEREAS,
the Lenders have made, are making and will be making loans to Parent to be
secured by certain collateral; and
WHEREAS,
it is desirable to provide for the orderly administration of such collateral by
requiring each Lender to appoint the Collateral Agent, and the Collateral Agent
has agreed to accept such appointment and to receive, hold and deliver such
collateral, all upon the terms and subject to the conditions hereinafter set
forth; and
WHEREAS,
it is desirable to allocate the enforcement of certain rights of the Lenders
under the Notes for the orderly administration thereof.
NOW,
THEREFORE, in consideration of the premises set forth herein and for other good
and valuable consideration, the parties hereto agree as follows:
1.
Collateral.
(a) Contemporaneously
with the execution and delivery of this Agreement by the Collateral Agent and
the Lenders, (i) the Collateral Agent has or will have entered into Security
Agreement among the Collateral Agent and Parent (the “Security Agreement”),
regarding the grant of a security interest in the assets of Parent (such assets
are referred to herein and in the Security Agreement as the “Collateral”) to the
Collateral Agent, for the benefit of the Lenders, (ii) Guarantor will have
executed and delivered a “Guaranty” in favor of Lenders in connection with the
Obligations (as defined in the Security Agreement), and (iii) Parent is issuing
the Notes to the Lenders pursuant to a “Subscription Agreement” dated at or
about the date of this Agreement. Collectively, the Security
Agreement, Guaranty, Notes and Subscription Agreement and other agreements
referred to therein are referred to herein as “Borrower
Documents”. All defined terms not otherwise defined herein
shall have the meanings attributed to them in the Security
Agreement.
(b) The
Collateral Agent hereby acknowledges that any Collateral held by the Collateral
Agent is held for the benefit of the Lenders in accordance with this Agreement
and the Borrower Documents. No reference to the Borrower Documents or
any other instrument or document shall be deemed to incorporate any term or
provision thereof into this Agreement unless expressly so provided.
(c) The
Collateral Agent is to distribute in accordance with the Borrower Documents any
proceeds received from the Collateral which are distributable to the Lenders in
proportion to their respective interests in the Obligations as defined in the
Security Agreement.
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2.
Appointment of the
Collateral Agent.
The
Lenders hereby appoint the Collateral Agent (and the Collateral Agent hereby
accepts such appointment) to take any action including, without limitation, the
registration of any Collateral in the name of the Collateral Agent or its
nominees prior to or during the continuance of an Event of Default (as defined
in the Borrower Documents), the exercise of voting rights upon the occurrence
and during the continuance of an Event of Default, the application of any cash
collateral received by the Collateral Agent to the payment of the Obligations,
the making of any demand under the Borrower Documents, the exercise of any
remedies given to the Collateral Agent pursuant to the Borrower Documents and
the exercise of any authority pursuant to the appointment of the Collateral
Agent as an attorney-in-fact pursuant to the Security Agreement that the
Collateral Agent deems necessary or proper for the administration of the
Collateral pursuant to the Security Agreement. Upon disposition of
the Collateral in accordance with the Borrower Documents, the Collateral Agent
shall promptly distribute any cash or Collateral in accordance with Section
10.4 of the Security Agreement. Lenders must notify Collateral Agent
in writing of the issuance of Notes to Lenders by Parent. The
Collateral Agent will not be required to act hereunder in connection with Notes
the issuance of which was not disclosed in writing to the Collateral Agent nor
will the Collateral Agent be required to act on behalf of any assignee of Notes
without the written consent of Collateral Agent.
3.
Action by the Majority in
Interest.
(a) Certain
Actions. Each of the Lenders covenants and agrees that only a
Majority in Interest shall have the right, but not the obligation, to undertake
the following actions (it being expressly understood that less than a Majority
in Interest hereby expressly waive the following rights that they may otherwise
have under the Borrower Documents):
(i) Acceleration. If
an Event of Default occurs, after the applicable cure period, if any, a Majority
in Interest may, on behalf of all the Lenders, instruct the Collateral Agent to
provide to Parent and/or Guarantor notice to cure such default and/or declare
the unpaid principal amount of the Notes to be due and payable, together with
any and all accrued interest thereon and all costs payable pursuant to such
Notes;
(ii) Enforcement. Upon
the occurrence of any Event of Default after the applicable cure period, if any,
a Majority in Interest may instruct the Collateral Agent to proceed to protect,
exercise and enforce, on behalf of all the Lenders, their rights and remedies
under the Borrower Documents against Parent and/or Guarantor, and such other
rights and remedies as are provided by law or equity; and
(iii) Waiver of Past
Defaults. A Majority in Interest may instruct the Collateral
Agent to waive any Event of Default by written notice to Parent and/or
Guarantor, and the other Lenders, but not waive damages accrued or accruing
until the effective date of such waiver.
(b) Permitted Subordination and
Release. A Majority in Interest may instruct the Collateral
Agent to agree to release in whole or in part or to subordinate any Collateral
to any claim or other actual or proposed security interest and may enter into
any agreement with Parent and/or Guarantor to evidence such subordination; provided, however, that
subsequent to any such release or subordination, each Note shall remain pari passu with the other
Notes held by the Lenders.
(c) Further
Actions. A Majority in Interest may instruct the Collateral
Agent to take any action that it may take under this Agreement
by instructing the Collateral Agent in writing to take such action on behalf of
all the Lenders.
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(d) Majority in
Interest. For so long as any obligations remain outstanding on
the Notes, Majority in Interest for the purposes of this Agreement and the
Borrower Documents shall mean Lenders who hold not less than fifty-one percent
(51%) of the outstanding principal amount of the Notes.
4.
Power of
Attorney.
(a) To
effectuate the terms and provisions hereof, the Lenders hereby appoint the
Collateral Agent as their attorney-in-fact (and the Collateral Agent hereby
accepts such appointment) for the purpose of carrying out the provisions of this
Agreement including, without limitation, taking any action on behalf of, or at
the instruction of, the Majority in Interest at the written direction of the
Majority in Interest and executing any consent authorized pursuant to this
Agreement and taking any action and executing any instrument that the Collateral
Agent may deem necessary or advisable (and lawful) to accomplish the
purposes hereof.
(b) All
acts done under the foregoing authorization are hereby ratified and approved and
neither the Collateral Agent nor any designee nor agent thereof shall be liable
for any acts of commission or omission, for any error of judgment, for any
mistake of fact or law except for acts of gross negligence or willful
misconduct.
(c) This
power of attorney, being coupled with an interest, is irrevocable while this
Agreement remains in effect.
5.
Expenses of the Collateral
Agent. The Lenders shall pay any and all reasonable costs and
expenses incurred by the Collateral Agent, including, without limitation,
reasonable costs and expenses relating to all waivers, releases, discharges,
satisfactions, modifications and amendments of this Agreement, the
administration and holding of the Collateral, insurance expenses, and the
enforcement, protection and adjudication of the parties’ rights hereunder by the
Collateral Agent, including, without limitation, the reasonable disbursements,
expenses and fees of the attorneys the Collateral Agent may retain, if any, each
of the foregoing in proportion to their holdings of the Notes.
6.
Reliance on Documents and
Experts. The Collateral Agent shall be entitled to rely upon
any notice, consent, certificate, affidavit, statement, paper, document, writing
or communication (which may be by telegram, cable, telex, telecopier, or
telephone) reasonably believed by it to be genuine and to have been signed, sent
or made by the proper person or persons, and upon opinions and advice of its own
legal counsel, independent public accountants and other experts selected by the
Collateral Agent.
7.
Duties of the Collateral
Agent; Standard of Care.
(a) The
Collateral Agent’s only duties are those expressly set forth in this Agreement,
and the Collateral Agent hereby is authorized to perform those duties in
accordance with commercially reasonable practices. The Collateral
Agent may exercise or otherwise enforce any of its rights, powers, privileges,
remedies and interests under this Agreement and applicable law or perform any of
its duties under this Agreement by or through its officers, employees,
attorneys, or agents.
(b) The
Collateral Agent shall act in good faith and with that degree of care that an
ordinarily prudent person in a like position would use under similar
circumstances.
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(c) Any
funds held by the Collateral Agent hereunder need not be segregated from other
funds except to the extent required by law. The Collateral Agent
shall be under no liability for interest on any funds received by it
hereunder.
8.
Resignation. The
Collateral Agent may resign and be discharged of its duties hereunder at any
time by giving written notice of such resignation to the other parties hereto,
stating the date such resignation is to take effect. Within five (5)
days of the giving of such notice, a successor collateral agent shall be
appointed by the Majority in Interest; provided, however, that if the
Lenders are unable so to agree upon a successor within such time period, and
notify the Collateral Agent during such period of the identity of the successor
collateral agent, the successor collateral agent may be a person designated by
the Collateral Agent, and any and all fees of such successor collateral agent
shall be the joint and several obligation of the Lenders. The
Collateral Agent shall continue to serve until the effective date of the
resignation or until its successor accepts the appointment and receives the
Collateral held by the Collateral Agent but shall not be obligated to take
any action hereunder. The Collateral Agent may deposit any
Collateral with the Supreme Court of the State of New York for New York County
or any such other court in New York State that accepts such
Collateral.
9.
Exculpation. The
Collateral Agent and its officers, employees, attorneys and agents, shall not
incur any liability whatsoever for the holding or delivery of documents or the
taking of any other action in accordance with the terms and provisions of this
Agreement, for any mistake or error in judgment, for compliance with any
applicable law or any attachment, order or other directive of any court or other
authority (irrespective of any conflicting term or provision of this Agreement),
or for any act or omission of any other person engaged by the Collateral Agent
in connection with this Agreement, unless occasioned by the exculpated person’s
own gross negligence or willful misconduct; and each party hereto hereby waives
any and all claims and actions whatsoever against the Collateral Agent and its
officers, employees, attorneys and agents, arising out of or related directly or
indirectly to any or all of the foregoing acts, omissions and
circumstances.
10. Indemnification. The
Lenders hereby agree to indemnify, reimburse and hold harmless the Collateral
Agent and its directors, officers, employees, attorneys and agents, jointly and
severally, from and against any and all claims, liabilities, losses and expenses
that may be imposed upon, incurred by, or asserted against any of them, arising
out of or related directly or indirectly to this Agreement or the Collateral,
except such as are occasioned by the indemnified person’s own gross negligence
or willful misconduct.
11. Miscellaneous.
(a) Rights and Remedies Not
Waived. No act, omission or delay by the Collateral Agent
shall constitute a waiver of the Collateral Agent’s rights and remedies
hereunder or otherwise. No single or partial waiver by the Collateral
Agent of any default hereunder or right or remedy that it may have shall operate
as a waiver of any other default, right or remedy or of the same default, right
or remedy on a future occasion.
(b) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to conflicts of laws
that would result in the application of
the substantive laws of another
jurisdiction.
(c) Waiver of Jury Trial and
Setoff; Consent to Jurisdiction; Etc.
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(i) In
any litigation in any court with respect to, in connection with, or arising out
of this Agreement or any instrument or document delivered pursuant to this
Agreement, or the validity, protection, interpretation, collection or
enforcement hereof or thereof, or any other claim or dispute howsoever arising,
between the Collateral Agent and the Lenders or any Lender, then each Lender, to
the fullest extent it may legally do so, (A) waives the right to interpose any
setoff, recoupment, counterclaim or cross-claim in connection with any such
litigation, irrespective of the nature of such setoff, recoupment, counterclaim
or cross-claim, unless such setoff, recoupment, counterclaim or cross-claim
could not, by reason of any applicable federal or state procedural laws, be
interposed, pleaded or alleged in any other action; and (B) WAIVES TRIAL BY JURY IN CONNECTION WITH ANY SUCH LITIGATION
AND ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. EACH LENDER AGREES THAT THIS
SECTION 11(c) IS A SPECIFIC AND
MATERIAL ASPECT OF THIS AGREEMENT AND ACKNOWLEDGE THAT THE COLLATERAL AGENT
WOULD NOT ENTER THIS AGREEMENT IF THIS SECTION 11(c) WERE NOT PART OF THIS
AGREEMENT.
(ii) Each
Lender irrevocably consents to the exclusive jurisdiction of any State or
Federal Court located within the County of New York, State of New York, in
connection with any action or proceeding arising out of or relating to this
Agreement or any document or instrument delivered pursuant to this Agreement or
otherwise. Each party hereby irrevocably waives personal service of
process and consents to process being served in any suit, action or proceeding
in connection with this Agreement or any other Transaction Document by mailing a
copy thereof via registered or certified mail or overnight delivery (with
evidence of delivery) to such party at the address in effect for notices to it
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any
other manner permitted by law. Each Lender hereby waives, to the
fullest extent it may effectively do so, the defenses of forum non conveniens
and improper venue.
(d) Admissibility of this
Agreement. Each of the Lenders agrees that any copy of this
Agreement signed by it and transmitted by telecopier for delivery to the
Collateral Agent shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence.
(e) Address for Notices.
All notices, demands, requests, consents, approvals, and other
communications required or permitted hereunder shall be in writing and, unless
otherwise specified herein, shall be (a) personally served, (b) deposited in the
mail, registered or certified, return receipt requested, postage prepaid, (c)
delivered by a reputable overnight courier service with charges prepaid, or (d)
transmitted by hand delivery, telegram, or facsimile, addressed as set forth
below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or
permitted to be given hereunder shall be deemed effective upon hand delivery or
delivery by facsimile, with accurate confirmation generated by the transmitting
facsimile machine, at the address or number designated below (if delivered on a
business day during normal business hours, or the first business day following
such delivery (if delivered other than on a business day during normal business
hours), (ii) on the first business day following the date deposited with an
overnight courier service with charges prepaid, or (iii) on the fifth business
day following the date of mailing pursuant to subpart (b) above, or upon actual
receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be:
In the
case of the Collateral Agent, to:
5
Collateral
Agents, LLC
000 Xxxx
00xx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
Attn:
General Counsel
Fax:
(000) 000-0000
In the
case of the Lenders, to:
To the
address and telecopier number set forth on
Schedule
A hereto.
If to
Lender or Collateral Agent,
with a
copy by telecopier only to:
Grushko
& Xxxxxxx, P.C.
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
(f)
Amendments and Modification;
Additional Lender. No provision hereof shall be modified,
altered, waived or limited except by written instrument expressly referring to
this Agreement and to such provision, and executed by the parties
hereto. Any transferee of a Note who acquires a Note after the date
hereof will become a party hereto by signing the signature page and sending an
executed copy of this Agreement to the Collateral Agent and receiving a signed
acknowledgement from the Collateral Agent.
(g) Fee. Upon
the occurrence of an Event of Default, the Lenders collectively shall pay the
Collateral Agent the sum of $10,000 on account, to apply against an hourly fee
of $500 to be paid to the Collateral Agent by the Lenders for services rendered
pursuant to this Agreement. All payments due to the Collateral Agent
under this Agreement including reimbursements must be paid when
billed. The Collateral Agent may refuse to act on behalf of or make a
distribution to any Lender who is not current in payments to the Collateral
Agent. Payments required pursuant to this Agreement shall be pari passu to the Lenders’
interests in the Notes. The Collateral Agent is hereby authorized to
deduct any sums due the Collateral Agent from Collateral in the Collateral
Agent’s possession.
(h)
Counterparts/Execution. This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but one
and the same instrument. This Agreement may be executed by facsimile
signature and delivered by facsimile transmission.
(i)
Successors and
Assigns. Whenever
in this Agreement reference is made to any party, such reference shall be deemed
to include the successors, assigns, heirs and legal representatives of such
party. No party hereto may transfer any rights under this Agreement,
unless the transferee agrees to be bound by, and comply with all of the terms
and provisions of this Agreement, as if an original signatory hereto on the date
hereof.
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(j)
Captions: Certain
Definitions. The captions of the various sections and
paragraphs of this Agreement have been inserted only for the purposes of
convenience; such captions are not a part of this Agreement and shall not be
deemed in any manner to modify, explain, enlarge or restrict any of the
provisions of this Agreement. As used in this Agreement the term
“person” shall
mean and include an individual, a partnership, a joint venture, a corporation, a
limited liability company, a trust, an unincorporated organization and a
government or any department or agency thereof.
(k) Severability. In
the event that any term or provision of this Agreement shall be finally
determined to be superseded, invalid, illegal or otherwise unenforceable
pursuant to applicable law by an authority having jurisdiction and venue, that
determination shall not impair or otherwise affect the validity, legality or
enforceability (i) by or before that authority of the remaining terms and
provisions of this Agreement, which shall be enforced as if the unenforceable
term or provision were deleted, or (ii) by or before any other authority of any
of the terms and provisions of this Agreement.
(l)
Entire
Agreement. This Agreement contains the entire agreement of the
parties and supersedes all other agreements and understandings, oral or written,
with respect to the matters contained herein.
(m) Schedules. The
Collateral Agent is authorized to annex hereto any schedules referred to
herein.
[THIS
SPACE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties hereto have caused this Collateral Agent Agreement
to be signed, by their respective duly authorized officers or directly, as of
the date first written above.
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“COLLATERAL
AGENT”
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COLLATERAL
AGENTS, LLC
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By:
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Its:
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ACKNOWLEDGED:
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“PARENT”
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a
British Virgin Islands company
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By:
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Its:
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“GUARANTOR”
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CHINA
CABLECOM LTD.
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a
British Virgin Islands company
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By:
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Its:
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OMNIBUS
INVESTOR SIGNATURE PAGE TO
The
undersigned, in its capacity as an Investor, hereby executes and delivers the
Collateral Agent Agreement to which this signature page is attached and agrees
to be bound by the Collateral Agent Agreement on the date set forth on the first
page of the Collateral Agent Agreement. This counterpart signature page,
together with all counterparts of the Collateral Agent Agreement and signature
pages of the other parties named therein, shall constitute one and the same
instrument in accordance with the terms of the Collateral Agent
Agreement.
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[Print
Name of Investor]
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[Name
of Co-Investor, if applicable]
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[Signature]
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[Signature]
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Name:
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Name:
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Title:
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Title:
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Mailing
Address:
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Telephone
No.:
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Facsimile
No:
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Email
Address:
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(City,
State and Zip)
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SCHEDULE A TO COLLATERAL
AGENT AGREEMENT
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LENDERS
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NOTE PRINCIPAL AMOUNT
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PLATINUM
PARTNERS VALUE ARBITRAGE FUND, L.P.
c/o
CIBC Bank and Trust Company (Cayman) Limited
11
Xx. Xxx’x Drive, Xxxxxx Town
Grand
Cayman, Cayman Islands
Fax
No.: (000) 000-0000
Email:
xxxxxxxxxx@xxxxxxxxxx.xxx
Taxpayer
ID# (if applicable): 00-0000000
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$ | 24,509,807.49 | ||
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MLR
CAPITAL OFFSHORE MASTER FUND, LTD.
c/o
MLR Capital Management, LLC
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Email:
xxxx@xxxxxxxxxx.xxx
Taxpayer
ID# (if applicable): 00-0000000
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$ | 1,731,796.09 | ||
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KATA,
LTD.
c/o
MLR Capital Management, LLC
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Email:
xxxx@xxxxxxxxxx.xxx
Taxpayer
ID# (if applicable): 00-0000000
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$ | 1,007,416.67 | ||
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ATLAS
MASTER FUND, LTD.
c/o
Balyasny Asset Management LP
000
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Email:
xxxxxxxxx@xxxxxxxx.xxx
Taxpayer
ID# (if applicable): 00-0000000
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$ | 1,196,667.08 | ||
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JAYHAWK
PRIVATE EQUITY FUND II, L.P.
c/o
Jayhawk Capital Management, L.L.C.
0000
Xxxx 000xx
Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): 00-0000000
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$ | 1,942,875.00 | ||
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XXXXXX
XXXXX
c/o
Velvet Asset Management
000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): ###-##-####
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$ | 601,958.36 | ||
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THE
XXXXXX AND XXXX XXXXXXXX TRUST
000
Xxxxx Xxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxxxxx, XX 00000
Taxpayer
ID# (if applicable): ###-##-####
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$ | 1,210,833.48 | ||
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CENTURION
CREDIT GROUP, LLC
c/o
Centurion Credit Management, LP
000
Xxxx 00xx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): 00-0000000
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$ | 6,656,145.83 | ||
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XXXXX
XXXXXXX
Xxx
Xxxxx Xxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): ###-##-####
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$ | 287,833.33 | ||
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EL
EQUITIES, LLC
Xxx
Xxxxx Xxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): 00-0000000
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$ | 503,708.33 | ||
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XXXXX
XXXXX #0, LP
Xxx
Xxxxx Xxxxxx Xxxxx, 00xx
Xxxxx
Xxx
Xxxx, XX 00000
Fax
No.: (000) 000-0000
Taxpayer
ID# (if applicable): 00-0000000
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$ | 3,525,958.33 | ||
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TOTALS
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$ | 43,175,000.00 | ||
10
